NEGATIVE - CRITIQUE - FEMINIST CRITIQUE OF PRIVACY 145
B EXT IMPACTSPUBLIC/PRIVATE DICHOTOMY IS ARCHAIC
THE PUBLIC-PRIVATE DISTINCTION IS AN ARCHAIC LEGAL DISTINCTION THAT FAILS TO ADDRESS THE ROLE THAT THE PRIVATE SECTOR PLAYS IN PUBLIC AND PERSONAL LIFE TODAY
Gregory Shaffer, Assistant Professor of Law, University of Wisconsin Law School, Winter, 2000; Journal of International Law, 25 Yale J. Int'l L. 1, "Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards," EE2001-hxm lxnx
The traditional distinction in the American legal system between the public and the private has long been critiqued. n1 11 The distinction's basis lies in liberal political theory, according to which individuals need to be protected from collective control over their behavior. n1 12 Critics maintain that private entities' activities need to be subject to similar controls because they too can coerce or otherwise significantly influence individual behavior. n1 13 For example, numerous constitutional law scholars critique the Supreme Court's well-entrenched "state action" doctrine, which limits the application of the [*29] Fourteenth Amendment's due process and equal protection requirements to federal governmental actions. n1 14 Legal realists have long cast doubt on the workability of the public-private distinction, given that so many "private" entities provide "public" functions or are deemed to act in the "public interest." n1 15 Law and society scholars such as Stuart Macaulay note that in many cases, private firms perform public government's three primary functions - the creation and interpretation of rules, adjudication over compliance, and application of sanctions for non-compliance.
PUBLIC/PRIVATE DICHOTOMY IS FALSE BECAUSE OF THE EXISTENCE OF A CIVIL SOCIETY
Judith Squires, 1999; GENDER IN POLITICAL THEORY, EE2001hxm p. 25
However, the apparently binary division between public and private is complicated by the existence of a third sphere, also labelled private - that of personal life, This creates a tripartite, rather than a dual, division of social relations: the state, civil society and the personal. It is clear that the state is always cast as public. It Is equally clear that the personal (when considered within political theory) is cast as private. Confusingly, civil society is cast as private when opposed to the state and public when opposed to the personal. This inevitably makes any discussion of a single public/private dichotomy either partial or confused, or both.